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Chilling Effect for Me, But Not for Thee

Scholars at Georgetown explain why certain speech against jihad just shouldn't be allowed.

“I don’t apply the same standards” as in the United States, the Muslim Harvard Law School professor Intisar A. Rabb stated at a November 21, 2013, Georgetown University conference with respect to “hate speech” restrictions and Islam abroad. In connection with her concern about an American Muslim’s terrorism conviction “chilling speech,” Rabb’s acceptance of “just a different legal regime” abroad revealed troubling double standards towards Islam.

The federal government considered the book, website, and Mehanna’s “disfavored political and religious beliefs” all supportive of Al Qaeda. The appellate opinion noted that Mehanna had a First Amendment right to praise Al Qaeda, but Al-Qaeda-coordinated advocacy was terrorism support. “Under the Government’s theory,” amici curia warned, “translating an al-Qa’ida text is lawful, as is espousing beliefs…supporting al-Qa’ida,” but together these “legal acts gives rise to criminal liability,” a particular concern for scholars researching terrorism.

Rabb at Georgetown therefore demanded that action beyond speech underlie any terrorism support conviction. Yet, unmentioned by Rabb, Mehanna had traveled in 2004 to Yemen, irrespective of any translation work charge. The appeals court rejected his “rose-colored glasses” presentation as a “devoted scholar…protected by the First Amendment” and found a jury conclusion “virtually unarguable” that Mehanna “went abroad to enlist in...terrorist training.”

Legal issues aside, amici curiae did not consider Mehanna’s reading and website choices objectionable. At-Tibyan, for example, “primarily” concerned “Abu Muhammad al-Maqdisi…a theologian and a jurist” who “endorses rebellion against…illegitimate Muslim regimes.” Among “innumerable mainstream theological texts,”39 Ways also involved “basic…Sunni jurisprudence,” namely the “individual duty (fard ‘ayn) incumbent on all Muslims” to “contribute to wars of self-defense.” “All collections of the words and deeds of the Muslim Prophet Muhammad (hadith) and all Islamic law books” endorsed this “standard position in all Sunni legal schools.”

The amici curiae cited a 2003 fatwa from “mainstream Muftis” at OnIslam, “[o]ne of the most popular websites in the English-speaking world devoted to Islam.” The muftis considered whether for Muslims it is “necessary to fight alongside Afghans” or otherwise resist American-led forces in Afghanistan. Citing Quran verses legitimating fighting against non-Muslims, the muftis answered that the “Muslim Ummah (nation) is considered one body, which if a single organ aches all the other organs will share the feelings of agony.”

In this context, Rabb’s invocation of the proverbial “chilling effect” on free speech prompted my question about criticizing Islam. Rabb’s “each regime is different” response allowed for “dignity laws” as a “prerogative” for other democracies dealing with anti-Islam speech grouped by her with Nazism. Muslim-majority countries also had such laws, Rabb indicated, a worrying statement in light of Islamic blasphemy laws.

Critical issues involving Islam, however, were not absent from the conference. George Soros-financed leftist evangelical Richard Cizek, for example, recalled during a panel how a fellow evangelical had once told him that “insults in Lynchburg produce riots in Lahore.” Convicted terrorism financier Sami Al-Arian, meanwhile, discussed with me in the audience viewing the conference’s morning segment before going home to comply with his house arrest.

“Islamophobia” critic Nathan Lean was also in the audience. Called a “stalker” by Spencer, Lean has repeatedly tweeted an article supposedly containing Spencer’s address and wife’s picture, a “clear attempt to intimidate me.” Addressed by me on this matter, Lean curtly replied that it is “not appropriate” to discuss Spencer at a Christian-Muslim understanding conference and walked away.

Thus Lean, Rabb, and others, concerned about fundamentally necessary anti-terrorism laws infringing intellectual inquiry in the United States, exhibited little principled concern about uninhibited discussion of Islam. Yet as the conference and Mehanna’s conviction show, the needs of security and liberty demand robust debate precisely with respect to Islam.

This article was sponsored byThe Legal Project, an activity of the Middle East Forum.

Andrew E. Harrod is a freelance researcher and writer who holds a PhD from the Fletcher School of Law and Diplomacy and a JD from George Washington University Law School. He is a fellow with the Lawfare Project, an organization combating the misuse of human rights law against Western societies. You may follow Harrod on twitter at @AEHarrod.